Citation Nr: 0109765
Decision Date: 04/03/01 Archive Date: 04/11/01
DOCKET NO. 99-21 385 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wilmington, Delaware
THE ISSUES
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated as 50 percent
disabling.
Entitlement to special monthly compensation based on a need
for regular aid and attendance of another person.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
ATTORNEY FOR THE BOARD
Richard V. Chamberlain, Counsel
INTRODUCTION
The veteran had active service from February 1969 to December
1969.
This appeal comes to the Board of Veterans' Appeals (Board)
from August 1998 and November 1998 RO rating decisions that
denied service connection for substance abuse and arthritis
of the cervical and lumbar spine, a separate evaluation for
residuals of shell fragment wounds to the sacrum (currently
considered in the evaluation of the residuals of shell
fragment wounds to the buttocks), an increased evaluation for
PTSD (rated 50 percent), an increased evaluation for
amputation of the right 5th finger (rated 10 percent), and
special monthly compensation based on a need for regular aid
and attendance of another person.
In an informal presentation to the Board in August 2000, the
representative withdrew the appeal with the issues of service
connection for substance abuse and arthritis of the cervical
and lumbar spine, a separate evaluation for residuals of
shell fragment wounds to sacrum, and for an increased
evaluation for amputation of the right 5th finger that the
representative previously submitted. 38 C.F.R. § 20.204
(2000). Under the circumstances, the issues for appellate
consideration are listed on the first page of this remand.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (to be codified at
38 U.S.C.A. §§ 5100, 5103A, and 5126, and to be codified as
amended at 5102, 5103, 5106 and 5107) redefined VA's duty to
assist the veteran in the development of a claim. In this
case, there is additional VA duty to assist the veteran in
the development of his claims.
The report of the veteran's VA psychiatric examination in
September 1998 indicates that he has received individual
therapy from a counselor in Baltimore, Maryland. The report
of this treatment has not been obtained for inclusion in the
appellate record. These psychiatric reports are relevant to
his claim for an increased evaluation for PTSD and should be
obtained for review by the examiner who conducted the
September 1998 VA examination. Murincsak v. Derwinski, 2
Vet. App. 363 (1992).
The report of the veteran's VA muscle examination leaves the
Board uncertain as to whether or not the veteran needs the
regular aid and attendance of another person. The report of
this examination should be returned to the examiner for the
preparation of an addendum that contains additional
information as noted below. 38 C.F.R. § 4.70 (2000).
In view of the above, the case is REMANDED to the RO for the
following actions:
1. The RO should ask the veteran to
prepare a detailed list of all sources
(VA and non-VA) of evaluation or
treatment for his service-connected
disabilities since September 1998,
including any source of individual
therapy for psychiatric problems in
Baltimore, Maryland. Names and addresses
of the medical providers, and dates of
evaluations and treatment, should be
listed. After obtaining any needed
release forms from the veteran, the RO
should directly contact the medical
providers and obtain copies of the
records not already in the file.
2. After the above development, the
report of the veteran's VA psychiatric
examination in September 1998 should be
returned to the examiner or other
psychiatric specialist for the
preparation of addendum. The examiner
should report a GAF (global assessment of
functioning) under the provisions of the
American Psychiatric Association's
Diagnostic and Statistical Manual for
Mental Disorders, Fourth Edition (DSM
IV), that is to be used in the evaluation
of the veteran's PTSD, based on the
current severity of the veteran's
psychiatric condition/s. This GAF should
reflect consideration of the veteran's
medical history, including the reports of
any recent individual therapy. In order
to assist the examiner in providing the
requested information, the veteran's
claims folders must be made available to
the psychiatric specialist and reviewed
prior to the preparation of the addendum.
In connection with the review the
examiner should be furnished a copy of
the revised VA general rating formula for
mental disorders (38 C.F.R. § 4.130,
effective November 7, 1996) and be
requested to comment as to the presence
or absence of each symptom and clinical
finding specified therein from 50 to 100
percent and, if present, the frequency
and/or degree(s) of severity thereof. If
the requested information cannot be
provided without examination of the
veteran, he should be scheduled for such
examination.
3. The report of the veteran's VA muscle
examination in September 1998 should be
returned to the examiner or other
appropriate medical specialist for the
preparation of an addendum. The examiner
should express opinions as to whether or
not the veteran is able to dress or
undress himself or to keep himself
ordinarily clean and presentable; whether
he frequently needs adjustment of any
special prosthetic or orthopedic
appliances which by reason of the
particular disability cannot be done
without aid; whether he is able to feed
himself; whether he is able to attend to
the wants of nature; and whether he
requires care or assistance on a regular
basis to protect himself from hazards or
dangers incident to his daily
environment. The examiner should note
whether the veteran is "bedridden,"
that is defined as that condition which,
through its essential character, actually
requires that he remains in bed. These
opinions should be made based on a review
of the medical evidence in the veteran's
case. In order to assist the examiner in
providing the requested information, the
veteran's claims folders must be made
available to the medical specialist and
reviewed prior to the preparation of the
addendum. If the requested information
cannot be provided without examination of
the veteran, he should be scheduled for
such examination.
4. The RO must review the claims file and
ensure that all notification and
development action required by the VCAA,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. If the benefits
sought on appeal remain denied, the
veteran and the representative, if any,
should be provided with an appropriate
supplemental statement of the case (SSOC).
The SSOC must contain notice of all
relevant actions taken on the claims for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
R. E. Smith
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).